Compassion Brings Court Challenge in Alaska and Seeks Recognition of Right Under State's Constitution

On December 15, 1998 Compassion in Dying Federation launched the second phase of its Litigation Project and filed a lawsuit in Alaska Superior Court at Anchorage. Two Alaska citizens courageously joined the lawsuit as patient plaintiffs to challenge the ban on assisted dying.

Saying they want control over end-of-life decisions and the option of a hastened death, they joined the suit to add their voices to the national debate concerning a patient's end-of-life decisions. Kevin Sampson, 43, and a woman in her 60's with cancer who is filing as "Jane Doe" to protect her privacy, join Compassion's initiative with their claim that laws prohibiting a hastened death violate their constitutional rights of privacy, liberty and equal protection.

Kevin Sampson, a retired auditor for the Alaska Department of Revenue who served in the U.S. Air Force and graduated from the University of Alaska, was diagnosed HIV positive in 1985. His AIDS is no longer amenable to treatment. Jane Doe is a physician who was diagnosed with breast cancer in 1977. It has since spread throughout her body and is in its terminal stages.

Legalization of assisted dying through the courts remains one of the chief missions of Compassion in Dying Federation. We are continually reminded of the urgency of achieving this liberty by the pressing needs of our terminally ill clients and others who contact us from throughout the country.

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Compassion's cases decided last year at the United States Supreme Court, Washington v. Glucksberg and Vacco v. Quill, achieved remarkable success in stimulating an intense national dialogue. Federal appellate panels in two of the most populous jurisdictions in the nation, the 9th Circuit and the 2nd Circuit, agreed with Compassion's position that liberty and equal protection principles apply to private decisions about how we die. Compassion's Director of Legal Affairs, Kathryn Tucker served as lead attorney for both of these federal lawsuits and argued them with co-counsel before the U.S. Supreme Court.

The Supreme Court did not recognize a federal constitutional right to assistance in the dying process, but the legal basis for such a right was developed and refined through these cases. These cases also established an expectation for appropriate pain management and palliative care for the terminally ill and remain an important factor in national attention newly directed toward improved care for the dying.

Energized by the Supreme Court Justices' call for national dialogue, Compassion now proceeds to the next phase of its campaign for recognition of this basic human right -- the right to a humane death. We intend to present the compelling needs and arguments for constitutional protection of assisted dying to the state courts where the state constitution bestows broader and more specific guarantees of privacy and liberty than the federal constitution does.

Alaska is one such state. Compassion staff, outside counsel and experts on our legal advisory team chose it after a lengthy and deliberate examination of the constitutions and case law in each of the 50 states.

Anchorage attorney Robert Wagstaff serves as co-counsel in the Alaska litigation with Ms. Tucker. Mr. Wagstaff has a well-established constitutional practice and over 30 years experience before the Alaska courts. In correspondence with Compassion he confirmed that "The history of constitutional law in Alaska suggests a strong basis for a challenge to the ban on physician assisted dying. Decisions of the (Alaska Supreme) court suggest that the court may likely view the right of competent terminally ill adults to control the manner in which they die as fundamental."

In papers filed with the court Mr. Wagstaff asks, "Do mentally competent adults who face suffering and certain death in the near future have the right to choose to hasten their death by administering to themselves drugs prescribed by their doctor for that purpose? Or may the Alaska Legislature intercept that decision in an effort to ensure that such persons remain alive, regardless of their wishes, until the ravages of disease reach their ultimate, painful conclusion?"

Both patients stated in affidavits they have aggressively pursued medical treatments and believe they have received good medical care. Doctors have advised Mr. Sampson and Dr. Doe that they are in the terminal phase of their respective diseases and there are no cures available. Palliative care remains their only option but in both cases requires such heavy doses of pain medication as to rob Sampson and Doe of their alert mental state. Thus Alaska's ban on assisted dying forces them to choose between excruciating and debilitating pain or surrender of their consciousness to narcotic pain medications.

Oregon is still the only state allowing and regulating physician assistance in dying. For more than a year the option of legally obtaining medication to hasten death has been available to terminally ill, mentally competent Oregon residents as part of a full range of options at the end of life. The state has experienced significant improvements in pain management, palliative care and hospice use since the law was implemented.

Kathryn Tucker said, "The Oregon experience demonstrates that the prohibition of assisted dying elsewhere is without justification and that patients, in consultation with physicians, family and spiritual counselors, should be allowed to make end of life decisions." Implementation of the Oregon law suggests that when legalized, physician assisted dying is rare. It can be well regulated to prevent abuse and its availability can be a great comfort to patients and their families who fear intolerable suffering.

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